in the Interest of T.R., a Child

• Court: Court of Appeals of Texas
• Decided: May 9, 2007
• Docket: 10-07-00016-CV
• Status: Published

Opinion

IN THE

TENTH COURT OF APPEALS

 

No. 10-07-00016-CV

In the Interest of T.R., a Child,

From the 361st District Court

Brazos County, Texas

Trial Court No. 05-002507-CV-361

MEMORANDUM  Opinion

            Appellant Cassandra Robinson appeals the termination of her parental rights.  In the trial court and on appeal, she has been represented by retained counsel.  No affidavit of indigence has been filed with us or with the trial court.

The Clerk of this Court notified Appellant by letter dated March 29, 2007 that the original filing fee of $125.00 had not been paid and that if the fee was not paid within ten days, the appeal would be presented to the Court for dismissal.  The Clerk’s March 29 letter stated specifically:

The original filing fee in the amount of $125.00 is PAST DUE.  On January 24, 2007, the clerk of this court notified Appellant to pay the filing fee or the matter would be referred to the Court.  See Tex. R. App. P. 5; Appendix to Tex. R. App. P., Order Regarding Fees (July 21, 1998), see also Tex. Gov’t Code Ann. § 51.207(b) (Vernon Supp. 2004), § 51.901 (Vernon Supp. 2004).  There has been no response to our request.

Unless Appellant obtained indigent status for purposes of appeal under Texas Rule of Appellate Procedure 20, the payment of the filing fee is required.

If the fee is not paid within ten days from the date of this letter, this cause will be presented to the Court for dismissal of this appeal in accordance with Tex. R. App. P. 42.3(c).

Fees may be paid by check or money order, payable to the “Tenth Court of Appeals”.

More than ten days have passed since the March 29 letter (and more than three months have passed since the Clerk’s initial fee letter), and we have received no notice of Robinson’s compliance with the Clerk’s directive.  Accordingly, the appeal is dismissed.  See Tex. R. App. P. 42.3(c); 10th Tex. App. (Waco) Loc. R. 5(c).

Absent a specific exemption, the Clerk of the Court must collect filing fees at the time a document is presented for filing.  Tex. R. App. P. 12.1(b); Appendix to Tex. R. App. P., Order Regarding Fees (July 21, 1998); see also Tex. R. App. P. 5; 10th Tex. App. (Waco) Loc. R. 5(a); Tex. Gov’t Code Ann. §§ 51.207(b), 51.901 (Vernon Supp. 2005).  Under the circumstances of this case, we suspend the rule and order the Clerk to write off all unpaid filing fees in this case.  Tex. R. App. P. 2.

Reply to Dissent

The dissent misunderstands Higgins v. Randall County Sheriff’s Office, 193 S.W.3d 898, 899 (Tex. 2006).[1]  As result, it misapplies Higgins to the facts of this case.  Higgins is limited to the situation where an appellant files an indigence affidavit within the reasonable time allotted by the appeals court to pay the past-due filing fee.[2]  Higgins didn’t amend rule 20.1(c)(1) by judicial opinion; an indigence affidavit must still be filed in the trial court with or before the notice of appeal.  See Tex. R. App. P. 20.1(c).  Higgins merely applied another rule (rule 44.3) and established case law (In re J.W., 52 S.W.3d 730, 733 (Tex. 2001)) to a rare situation.  When an appeals court receives a copy of the notice of appeal without an indigence affidavit, the court should, unless clearly indicated otherwise, continue to presume that the appellant is not indigent and seek payment of the filing fee within a reasonable time.  See Tex. R. App. P. 12.1(b) (providing that appellate clerk “must . . . collect any filing fee”).

Unlike the appellants in Higgins and Hood, Robinson has retained counsel and was not indigent in the trial court.  Further unlike the appellants in Higgins and Hood, Robinson has not timely filed an indigence affidavit in response to the Clerk’s past-due fee letter; indeed, Robinson has not responded to the Clerk’s various deficiency letters or to the Intervenors’ motion to dismiss.  And unlike the dissent, we do not presume that any competent attorney would conclude that our Clerk’s March 29 letter supersedes the supreme court’s rulings in Higgins and Hood and that Robinson was foreclosed from filing an indigence affidavit.  Instead, given the other defects and irregularities in this appeal,[3] the accurate presumption is that Robinson is not interested in pursuing her appeal.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray dissenting)

Appeal dismissed

Opinion delivered and filed May 9, 2007

[CV06]

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[1]               In Higgins, the pro se appellant did not file either a filing fee or an indigence affidavit with his notice of appeal.  See Higgins v. Randall County Sheriff’s Office, 193 S.W.3d 898, 899 (Tex. 2006).  The appellate court warned Higgins that, unless he paid the filing fee within ten days, his appeal would be dismissed.  Id.  Nine days later, Higgins filed an indigence affidavit, but the appellate court dismissed the appeal because the affidavit was untimely and was unaccompanied by a motion to extend time.  Id.; see Tex. R. App. P. 20.1(c) (providing that appellant must file indigence affidavit in trial court with or before notice of appeal).  The supreme court, citing Rule of Appellate Procedure 25.1(b) and In re J.W., 52 S.W.3d 730, 733 (Tex. 2001), pointed out that an indigence affidavit has not been a jurisdictional requirement for some time, and ruled that Higgins’s failure to file an indigence affidavit (or, by implication, to pay the filing fee) was like any other formal defect in appellate procedure—“the court of appeals could dismiss the appeal only after allowing Higgins a reasonable time to correct this defect.”  Higgins, 193 S.W.3d at 899 (citing Tex. R. App. P. 44.3).  Because Higgins corrected the defect within the allotted time, the court of appeals erred in dismissing the appeal.  Id. at 900; see also Hood v. Wal-Mart Stores, Inc., 216 S.W.3d 829 (Tex. 2007) (holding that appellate court erred in dismissing appeal over pro se appellant’s failure to file indigence affidavit with notice of appeal, yet it was filed within 10-day window for paying filing fee).

[2]               Had the appellants in Higgins and Hood not filed their indigence affidavits within the reasonable amount of time allotted by the courts of appeals, the dismissals would not have been erroneous.

[3]               Dismissal of this appeal is not premature, as other circumstances indicate.  For example, Robinson has not requested the reporter’s record nor made arrangements to pay for it, despite a letter from the Clerk bringing this deficiency to Robinson’s attention.  See Tex. R. App. P. 34.6(b)(1); 37.3(a)(1).  Robinson has not served copies of her notice of appeal on all parties and has not notified the Court who the correct parties are to this appeal.  See Tex. R. App. P. 25.1(d), (e).  And Robinson has not filed a docketing statement, which she has been notified is past due.  See Tex. R. App. P. 32.1.

ite, 21 S.W.3d at 646-47. We will set aside the court’s ruling only if it “lies outside the zone of reasonable disagreement.” Id.

Impeachment Value

      A crime involving deception has a higher impeachment value than a crime involving violence. Theus, 845 S.W.2d at 881; Jackson, 50 S.W.3d at 592; White, 21 S.W.3d at 647. Crimes involving violence tend to be more prejudicial. Theus, 845 S.W.2d at 881; Jackson, 50 S.W.3d at 592. The Court in Theus noted that, in cases in which the impeachment value of the prior conviction is uncertain, evidence regarding the facts of the prior conviction can be considered by the court in determining whether the prior conviction should be admitted. See 845 S.W.2d at 881-82.

      Smith’s conviction for possession of methamphetamine does not necessarily involve deception. Cf. U.S. v. Hayes, 553 F.2d 824, 828 (2d Cir. 1977) (conviction for smuggling narcotics “has more probative value on credibility than, for example, a conviction for mere narcotics possession”); but see British Am. Ins. Co. v. Coffman, 574 S.W.2d 873, 873 (Tex. Civ. App.—Texarkana 1978, no writ) (“Possession of heroin is a crime involving moral turpitude.”). The State offered no evidence in the hearing outside the presence of the jury regarding the facts of the prior conviction. Cf. Theus, 845 S.W.2d at 882 (trial court should have considered facts surrounding prior conviction in determining its admissibility). Based on the limited record before us, we hold that this factor weighs against admissibility. See Jackson, 50 S.W.3d at 592.

Temporal Proximity

      Rule 609(b) renders a prior conviction presumptively inadmissible if it is one for which the witness had been released from custody more than ten years before trial. Tex. R. Evid. 609(b); Jackson, 50 S.W.3d at 591; Butler v. State, 890 S.W.2d 950, 954 (Tex. App.—Waco 1995, pet. ref’d). However, a trial court may nevertheless admit a conviction deemed too remote under this rule if the court determines that, under the “specific facts and circumstances,” the probative value of the conviction substantially outweighs its prejudicial effect. Id.

      The impeachment value of a “remote” prior felony conviction increases if the State offers “[e]vidence of the lack of reformation or subsequent felony and certain misdemeanor convictions.” See Lucas v. State, 791 S.W.2d 35, 51 (Tex. Crim. App. 1989); Jackson, 50 S.W.3d at 591.

      The State introduced evidence in the hearing outside the presence of the jury that Smith had misdemeanor DWI convictions in 1983, 1985, and 1992, and a felony DWI conviction in 2001. This constitutes “[e]vidence of . . . lack of reformation [and of a] subsequent felony . . . conviction[ ].” Accordingly, we hold that the facts and circumstances presented in this case tend to support the trial court’s determination that the probative value of the 1981 conviction substantially outweighs its prejudicial effect.

Similarity to Charged Offense

      The fact that a prior conviction is similar to the present offense weighs against its admissibility because the similarity might lead a jury to “convict on the perception of a past pattern of conduct, instead of on the facts of the charged offense.” Theus, 845 S.W.2d at 881; accord Jackson, 50 S.W.3d at 593. In Smith’s case, the 1981 conviction was for possession of methamphetamine. He was on trial for felony DWI. Thus, both are similar in that they involve an allegation of substance abuse. Accordingly, this factor weighs against the admissibility of the prior conviction.

Importance of Defendant’s Testimony/Credibility

      Appellant concedes that these factors favor admissibility.

Conclusion

      We must accord the trial court “wide discretion” in determining whether to admit a prior conviction for impeachment under Rule 609. Theus, 845 S.W.2d at 881; White, 21 S.W.3d at 646-47. Three of the five factors weigh in favor of admissibility. Two weigh against. Under these circumstances, we cannot say that the court’s decision “lies outside the zone of reasonable disagreement.” See id. Accordingly, we overrule Smith’s sole point.

      We affirm the judgment.

                                                                   REX D. DAVIS

                                                                   Chief Justice

Before Chief Justice Davis,

      Justice Gray

Affirmed

Opinion delivered and filed August 1, 2003

Do not publish

[CR25]